No Violation of Due Process Based on Emails with the Court after Texas Divorce Trial

Both the Fourteenth Amendment to the U.S. Constitution and the Texas Constitution prohibit the state from depriving a person of a liberty interest without due process of law.  Case law has established that parental rights are fundamental liberty interests.  Due process generally requires that a person be given a meaningful opportunity to be heard.  A mother recently appealed her divorce decree, arguing she was deprived of her due process when the court accepted evidence after trial but before entering the final decree.

According to the appeals court, the child was born in March 2020 and the father filed for divorce the following August. In its ruling, the trial court named the parties joint managing conservators and awarded the father the exclusive right to designate the child’s primary residence within two counties. The final decree divided the marital estate, awarding the father $104,738.93 and the mother $69,825.95 from the sale of the home.

Due Process Claims

The mother appealed, arguing the trial court violated her due process rights by accepting certain evidence after the trial.

Following the trial, the court asked the parties via email if they had reached any agreements.  The father described his position on possession and a geographic restriction.  He also attached excerpts from the messaging system the parties used to communicate about their child.  The mother claimed the father had not responded to a settlement offer.

The court issued a ruling that day.  It ordered the father to draft a proposed decree, which the parties were to submit if they reached agreement, or submit with the mother’s redlines if they did not.  He sent the proposed decree, his proposed property division spreadsheet, and attached exhibits in October.

The mother moved for a new trial in early November, asking the court to set aside the father’s unsworn testimony, and objected to the court’s consideration of the ex parte evidence the father submitted.

The trial court stated it based its ruling only on the trial evidence and not any communications that occurred afterward.  The trial court stated it had made the ruling before sending the email asking if the parties had reached an agreement. It denied the mother’s motion.

The appeals court concluded the emails were not ex parte communications because the mother’s trial counsel was copied on all of them and the mother admitted she received copies of them.  The mother had also sent an email in response to the trial court.

The appeals court noted the trial court had conducted a trial, at the end of which the trial court stated it granted the divorce and took the remaining issues under advisement.  The appeals court also pointed out the mother had been heard regarding the post-trial communications through her motion for a new trial. Additionally, the court stated it had only considered the trial evidence in its judgment and there was nothing showing otherwise.

The appeals court concluded the mother’s due process rights were not violated because she had an opportunity to be heard and had been heard in a meaning manner.


The mother also argued the trial court abused its discretion because there was insufficient evidence to support the designation of the father as the primary joint managing conservator. She acknowledged the evidence indicated the parties were both available, able, and willing to take care of the child.  She argued the trial court had ignored the stability factor.  She expressed concerns the trial court had been influenced by her post-partum depression and the parties’ relationship.

The appeals court pointed out the trial court had not made findings or conclusions about post-partum depression.  It had made findings regarding specific behaviors, including accusing the father of destroying the family and trying to “take the child away from her” by petitioning for divorce.  There was evidence the mother yelled at the father and called him names in the child’s presence.  There was also evidence she had withheld the child from him and limited his access.  The mother argued she had been struggling with postpartum depression exacerbated by the father’s infidelity and this evidence should not be used against her.  She did not, however, object to the evidence at trial.  Additionally, she did not present authority supporting her argument the court should not consider it.

The appeals court found there was sufficient evidence for the trial court to exercise its discretion and concluded it did not abuse its discretion in giving the father the exclusive right to establish the child’s primary residence.

Property Division

The mother also argued the trial court abused its discretion by disproportionately dividing the marital property, specifically the division of the proceeds from the sale of the home. The mother argued the trial court did not have sufficient evidence to divide the proceeds from the sale disproportionately.  She argued there was no evidence that $30,000 was subtracted from the net proceeds to satisfy her attorney’s fees before the division, but the nearly $30,000 debt for the husband’s attorney’s fees had been listed as a debt, resulting in unjust enrichment.

The mother needed to show that the award of the proceeds had more than a de minimis effect on the just and right division of the whole estate.  The parties had significant assets.  The appeals court determined it could not conclude the division of the estate as a whole was so disproportionate that it was manifestly unjust.  The appeals court also concluded there was sufficient evidence for the trial court to make a just and right property division. The mother, therefore, did not show there was an abuse of discretion in the property division.

The appeals court affirmed the divorce decree.

Seek a Skilled Texas Family Law Attorney

The appeals court concluded that the mother’s due process rights were not violated in this case.  An experienced Texas divorce lawyer can fight to protect your rights during your divorce case.  Call McClure Law Group at 214.692.8200 to set up a consultation.


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